AQU17 v Minister for Immigration

[2018] FCCA 122

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 122

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – Safe Haven Enterprise (subclass 790) visa – applicant a citizen of Sri Lanka – whether a claim was raised on the materials that the applicant was at risk of harm as a member of a particular social group, being a member of an LTTE family – whether the Assessor considered that claim – whether the Assessor misapplied s.473DD of the Migration Act 1958.

Legislation:
Migration Act 1958, s.473DD

Cases cited:
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
Minister for Immigration and Border Protection v BBS16 & Anor [2017] FCAFC 176

Applicant: AQU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 311 of 2017

Judgment of: Judge Riley

Hearing date: 2 November 2017

Date of last submission: 2 November 2017

Delivered at: Melbourne

Delivered on: 22 January 2018

REPRESENTATION

Counsel for the applicant: Adam McBeth

Solicitors for the applicant: Wimal & Associates

Counsel for the first respondent: Andrew Yuile

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second respondent: DLA Piper Australia

ORDERS

1. The application filed on 16 February 2017 and amended on 4 October 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 311 of 2017

AQU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”).  In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The applicant’s application for a protection visa is a fast track application, pursuant to Part 7AA of the Migration Act 1958 (“the Act”).  Consequently, the decision made by the delegate was automatically referred to the Authority for review.  

The applicant’s claims

1. The applicant is a Tamil citizen of Sri Lanka.  He was born in 1985. He claimed that:

   a)he lived in area affected by the civil war;

   b)he was severely wounded in a bomb attack by the Sri Lankan army;

   c)later, his whole area was captured by the Sri Lankan army;

   d)he was one of 25 people with severe wounds taken away by army officers on suspicion of having Liberation Tigers of Tamil Eelam (“LTTE”) links;

   e)he was held in a camp, tortured and told that he would be killed;

   f)after seven months, three of the people in the camp were shot dead;

   g)he was loaded onto a truck with 12 other people;

   h)when the truck slowed down at a road junction, the applicant and a friend jumped out, escaped into the forest and made their way to Vavuniya;

   i)the applicant got married;

   j)Criminal Investigation Department (“CID”) officers began looking for the applicant;

   k)they arrested him in August 2011 and tortured him;

   l)he was released after paying a bribe;

   m)in May 2012, CID officers told the applicant to attend their office with more money;

   n)the applicant was scared and went to India for three months and then caught a boat to Christmas Island.

The Authority’s reasons

1. The Authority declined to consider certain material on the basis that the Authority considered it to be new information and the Authority was not satisfied it was permitted by s.473DD of the Act to consider that information. However, the Authority did consider that it was permitted to consider information relating to the applicant’s brother having been granted a protection visa.

2. The Authority accepted that:

   a)the applicant is a Tamil from the northern province of Sri Lanka;

   b)he has an older brother who worked for the LTTE from 2002;

   c)the applicant was seriously injured in a shelling attack in 2009 and has scars from these injuries; and

   d)he was suspected of involvement with the LTTE and taken to a camp because of his scars.

3. The Authority did not accept that the applicant escaped from the camp.  Rather, the Authority considered at the applicant was released as part of the general resettlement of the Tamil population after the war.

4. The Authority accepted that the applicant was detained by the CID for one month in 2011.  However, the Authority did not accept that the applicant paid a bribe to be released or was suspected of LTTE links.

5. The Authority did not accept that the applicant had been imputed with an LTTE profile because of his scars and did not accept that he faced a real risk of harm because of the LTTE links of his brother.

Ground 1

1. The first ground of review in the application filed on 16 February 2017 and amended on 4 October 2017 is:

   The IAA failed to consider an integer of the applicant’s claim, namely his claim to fear persecution as a member of a particular social group, being “LTTE families”.

2. The applicant asserts that he made this claim in his statutory declaration and written submissions dated 6 January 2017.  Both were sent to the Authority and had not been before the delegate.

3. The Authority considered that, to the extent that the submissions addressed the delegate’s decision and findings, they could be treated as argument rather than new information, and took that section of the submissions into account.  The Authority did not say exactly which section it took into account.  However, it seems likely that it meant the section headed, “About the Findings by the delegate”.  That section did not raise an issue about the applicant’s brother’s LTTE links or the applicant being a member of a particular social group consisting of LTTE families.

4. Elsewhere in the submissions, under the heading, “Explanation of Facts”, reference was made to the applicant’s statutory declaration made on 6 January 2017, which was not before the delegate.

5. The Authority evidently considered to be new information, which it was not permitted to consider, the aspect of the applicant’s statutory declaration made on 6 January 2017 that dealt with him being a member of an LTTE family, and the aspect of the written submissions that sought to further explain that information.  However, the Authority did not expressly state this.

6. If the Authority was not permitted to consider new information, then it was not permitted to consider any new claims that arose from that information.

7. However, the reality in this case is that the claim of the applicant facing persecution because he was a member of a particular social group consisting of members of LTTE families arose on the established facts.  That is, the Authority accepted that the applicant’s older brother had been involved with the LTTE and accepted that family members of such people may be at risk.  That is apparent from paragraph 26 of the Authority’s reasons for decision, which is as follows:

   I have accepted that the applicant came to the attention of the authorities because of the scarring on his body after he sustained injuries in a shelling attack, but I have not accepted that the applicant had a real or imputed profile LTTE subsequent to these events. I have also considered if he has been imputed with an LTTE profile on the basis of his older brother’s LTTE involvement. The current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka provides guidance on the profiles of people at risk of harm and likely to be in need of protection and notes that family members of LTTE members may be at risk. In response to a question at the SHEV interview about this brother the applicant stated that his brother has married and is living in Sri Lanka but that he had not been in contact with him for a long time and that he was not aware of his circumstances. I give significant weight to the fact that this brother was not required to undergo rehabilitation after the war and I also note that there is no indication that other family members in Sri Lanka came to adverse attention because of this brother’s LTTE links, and that the applicant did not come to adverse attention on this basis in the past. I am not satisfied that there is a real chance of harm to the applicant on return to Sri Lanka because of his brother’s association with the LTTE. (footnote omitted) (emphasis added)

8. The applicant argued that the Authority made no finding about whether the applicant was a member of a particular social group consisting of being a member of an LTTE family.  However, it seems to me to be implicit in paragraph 26 of the Authority’s reasons for decision that the Authority accepted that the applicant was a member of such a particular social group and potentially faced harm for that reason.  The applicant submitted that the phrase particular social group did not need to be used for the claim to be raised.  I accept that.  But, similarly, the Authority did not need to use the phrase particular social group to demonstrate that it had considered the required matters.

9. The Authority clearly understood the issue, by saying that it noted:

   … that family members of LTTE members maybe at risk.

10. The Authority then went on to explain why it did not consider the applicant faced a real chance of harm on that basis.  The Authority explained that:

    a)the applicant had not been in contact with his brother for a long time;

    b)the brother was not required to undergo rehabilitation after the war;

    c)other family members had not come to adverse attention because of the brother’s LTTE links; and

    d)the applicant had not come to adverse attention because of his brother’s LTTE links.

11. The applicant tried to draw a distinction between the applicant being imputed with an LTTE profile and the applicant being at risk as a member of a particular social group consisting of LTTE families.  However, in my view, the Authority’s reasoning covers both angles.

12. This ground is without substance.

Ground 2

1. The second ground of review in the application filed on 16 February 2017 and amended on 4 October 2017 is:

   The IAA constructively failed to exercise its jurisdiction by failing properly to assess whether new information submitted by the applicant satisfied the exceptional circumstances test in s473DD of the Migration Act.

   Particulars

   (a)The IAA found that the applicant’s claim to have refused to give the CID his true identity was “new information”.

   (b)The IAA’s consideration of whether the new information could be considered under s473DD related only to the applicant’s justification for not providing that information at the SHEV interview and therefore applied an unduly narrow test of whether there were exceptional circumstances for considering that information.

2. Section 473DD of the Act provides that:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

3. The Authority said at paragraph 6 of its reasons for decision:

   In his declaration the applicant stated that when he was detained by the Criminal Investigation Department (CID) in August 2011 the CID did not know who he was and he “refused to give them my true identity and details as I knew I was on the watch list as searched for LTTE fugitive”. The applicant did not advance this claim at the SHEV interview when asked about his 2011 detention and I find that this is new information. I have had regard to the applicant’s response to questions put to him at the interview about this matter. The delegate advised the applicant that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release. The applicant’s response to this question was that “the address they had was my father’s one so they went looking for me there”. The applicant did not advance that he “refused to give them my true identity” and that they did not know his real name. I consider that the applicant had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. Furthermore, the response the applicant gave at the interview (that they had his father’s address) contradicts his claim that the CID did not identify him during the period he was detained. I am not satisfied that there are exceptional circumstances to consider this new information.

4. The applicant argued that the Authority in the present case made the same mistake as was identified by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. In BVZ16, White J said:

   8.As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.

   9.The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent.  The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information.  So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)).  Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

   …

   30.     … the Court should keep in mind the caution emphasised by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that it “should not be concerned with ‘looseness in the language’” nor with “unhappy phrasing” in the reasons of decision‑makers such as the IAA and should not construe those reasons minutely “with an eye keenly attuned to the perception of error”.

   31.Nevertheless, despite these cautions, I do not consider that the reasons of the IAA can be construed in the way for which counsel for the Minister contends. The structure of the reasons counts strongly against that understanding of them. It can be inferred from [4] and [5] of the reasons that the IAA member was conscious that there were statutory limitations on her ability to consider the new information provided by the appellant. Having summarised the new information in [5], the IAA member noted in [6] the two explanations given by the appellant for not having mentioned the new information previously. The first was the appellant’s claim that he was afraid that Australian authorities would perceive him to be an LTTE member and afraid that he would be returned to Sri Lanka with other Tamils. The IAA member addressed that explanation in [7] and, in the final sentence of that paragraph, rejected it.

   32.The IAA member addressed the second explanation (the appellant’s embarrassment arising from the humiliating and degrading nature of the claimed experience and his difficulty in speaking about it) in [8] and, again, rejected it. 

   33.It is understandable that the IAA member would have wished to scrutinise closely the applicant’s late disclosure of the new information.  The circumstances in which the claims were made gave rise naturally to questions about their veracity.  That understanding and the content of [6], [7] and [8] indicate that the IAA member was engaged in an examination of the veracity of the appellant’s explanation, rather than in some more general evaluation of the material against either of the subpara (b)(i) or (b)(ii) criteria.

   34.Having rejected both explanations for the late disclosure of the new information, the IAA member then immediately expressed her conclusion in [9] that there were not exceptional circumstances justifying the consideration of the new information.  In these circumstances, I do not consider that it can be concluded that the IAA member considered the significance of the new information in the light of the appellant’s personal circumstances more generally or the way in which the claims in the new information related to the earlier claims made by the appellant. 

   35.The IAA member’s findings in [7] and [8] would have enabled her to conclude that the new information could have been provided to the Minister before the time of the delegate’s decision with the effect that the subpara (a) requirement was not satisfied. However, it seems significant that the IAA member did not express her conclusion in those terms. Instead, the member used only the terms of s 473DD(a). Moreover, and in any event, there is no indication that the IAA member considered the new material having regard to the criterion stated in subpara (b)(ii).

   36.For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point.  In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement.  The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement.  It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).

   37.I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).

5. The applicant argued that the Authority in the present case made the same error as was made in BVZ16 in that the Authority concluded that the exceptional circumstances test was not satisfied without considering the matters required by s.473DD(b)(ii) of the Act.

6. The Minister, firstly, made the formal submission that BVZ16 was wrongly decided.  However, between the hearing in the present case and the drafting of these reasons, the reasoning in BVZ16 has been upheld by a unanimous Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 & Anor [2017] FCAFC 176 at [102] to [112]. I therefore proceed on the basis that BVZ16 is correct.

1. The Minister, secondly, argued that BVZ16 was distinguishable, because, it was said, in the present case, the Authority did consider the matters required by s.473DD(a), (b)(i) and (b)(ii) of the Act. The new information in issue was that, when the applicant was detained by the CID in August 2011, the CID did not know who he was and he did not tell them because he knew he was on an LTTE watch list.

2. The Minister said that the Authority demonstrated that it had considered the matters required by s.473DD(b)(i) of the Act (information that could not have been provided to the delegate) when it said at paragraph 6 of its reasons:

   … I have had regard to the applicant’s response to questions put to him at the interview about this matter. The delegate advised the applicant that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release. The applicant’s response to this question was that “the address they had was my father’s one so they went looking for me there”. The applicant did not advance that he “refused to give them my true identity” and that they did not know his real name. I consider that the applicant had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. …

3. The applicant did not dispute that the Authority properly considered the matters required by s.473DD(b)(i) of the Act.

4. The Minister submitted that the Authority considered the matters required by s.473DD(b)(ii) of the Act (credible personal information that was not previously known) when it said at paragraph 6 of its reasons:

   … Furthermore, the response the applicant gave at the interview (that they had his father’s address) contradicts his claim that the CID did not identify him during the period he was detained. …

5. The Minister said that this passage showed that the Authority considered the credibility of the new information, finding that it was contradicted by the applicant’s own previous evidence.  The Minister argued that the Authority had considered in substance whether the new information:

   … is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

6. The applicant argued that the Minister had also argued in BVZ16 that both limbs of s.473DD(b) had been considered by the Authority, but that was exactly what White J had rejected. The Authority’s reasons in BVZ16 were relevantly as follows:

   [6]In this statement the applicant claims he had not previously mentioned this to his legal representative or to the delegate because he was afraid that Australian authorities would perceive him to be an LTTE member and was frightened he would be returned with other Tamils.  He also claims he was too embarrassed to disclose the incident because the experience was humiliating and degrading and as a male who had been mentally affected, it was difficult for him to open up.

   [7]The new information relates to material which was squarely an issue at the SHEV Interview on 4 December 2015.  The substance of his protection claim rests on his claims that he has repeatedly been accused of, and interrogated about, LTTE membership and support and he has provided details of various other incidents in which he claims he was detained and interrogated about this.  He was specifically asked about incidents of detention and torture during the SHEV Interview and he responded with descriptions of those incidents.  Given these factors, and the fact that he was represented and had been residing in Australia for three years by the time he was questioned by the delegate, I do not accept his explanation that the was afraid he would be suspected of being returned on account of being perceived as an LTTE member.

   [8]The applicant also claims he was previously too embarrassed to disclose the incident to either the delegate or his representative.  While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this as an explanation as to why he previously made no mention of being detained for two days in July 2012.  I consider he need not have provided intimate details about the torture to make the delegate aware that he had been detained and interrogated as recently as one month before he left Sri Lanka.  Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details.

   [9]I do not accept there are exceptional circumstances to justify considering the information. 

   (Emphasis added by White J)

7. The applicant did not deal squarely with whether the Authority in the present case considered the matters required by s.473DD(b)(ii) of the Act, other than by saying the Authority in the present case made the same mistake as was found to have occurred in BVZ16.

8. I accept the Minister’s submission that the present case is relevantly distinguishable from BVZ16.  In BVZ16, all of the Authority’s reasoning on the new information went to the issue of whether the information could have been provided to the delegate.  In the present case, there was reference to the credibility of the personal information, in the sense that the Authority highlighted a contradiction in the applicant’s evidence.

9. It may have been preferable for the Authority to have spelt out that it did not consider the new information to be credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims as mentioned in s.473DD(b)(ii) of the Act. However, it is sufficient for the Authority to deal with the substance of the matters before it, as long as a reviewing court can see what it has done.

10. In the present case, the Authority accurately set out in paragraph 4 of its reasons for decision the effect of s.473DD of the Act, although it did not identify that section. It seems that the Authority’s approach to s.473DD(b)(ii) of the Act was in keeping with that style, in that the Authority dealt with the substance, without going through chapter and verse of the legislative provisions. I conclude that the Authority did consider the matters required by s.473DD(b)(ii) of the Act.

11. The Authority clearly said that it was not satisfied that there were exceptional circumstances justifying the consideration of the new information. The applicant’s only issue with this conclusion was based on the applicant’s perception that the Authority had not considered the matters required by s.473DD(b)(ii) of the Act, so as to properly inform itself about whether there were exceptional circumstances. As the Authority did consider the matters required by s.473DD(b)(ii) of the Act, I accept that the Authority properly considered the matters required to be considered under s.473DD(a) of the Act.

12. This ground is not made out.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:       22 January 2018